Once a judge has rendered a decision, the opportunity for a “do-over” is slim. Generally, judges cannot reconsider their decision – once an order is issued, the judge’s job (and jurisdiction to hear further arguments) is done.[1] In most cases, the only avenue open to the losing party is to appeal the order to a higher court.

There are a few exceptions to this general principle:

• Rule 37.14 – allows a party who is affected by a order, but was not given notice (or sufficient notice) of the underlying motion or failed to appear through some accident or mistake, to bring a motion to have the order varied or set aside.
• Rule 59.06 – allows a party to bring a motion to vary, set aside, or suspend the operation of an order on the grounds that it contains an error arising from an accidental slip or omission, or requires amendment to address an issue the court did not adjudicate.

In very limited cases, a party may ask the court to reconsider after the decision is released but before a formal order is taken out: until the formal order is signed, the court retains jurisdiction over the matter.

The respondent in McGrath v Joy attempted to take advantage of this small window when he asked the Court of Appeal to reconsider its decision.

As readers of this blog will recall, McGrath v Joy involves a long-standing dispute over the validity of a suicide note as a testamentary document. In 2021, the application judge determined that the suicide note would have been a valid will, but the deceased lacked capacity at the time of its creation and thus it was invalid. In 2022, the Court of Appeal of Ontario overturned the finding that the deceased lacked testamentary capacity, with the result that the appeal judge’s finding that the suicide note was a valid will took effect.

The respondent, who had challenged the validity of the suicide note, brought a motion asking the Court of Appeal to rehear the appeal. The respondent argued that, if the suicide note was a valid testamentary document, it should be considered a codicil to the deceased’s prior will and not effect his inheritance. The respondent further noted that when he had addressed this issue at the hearing of the appeal, he had made his arguments without reference to statute and case law supporting his position and should be given the opportunity to do so now.

The Court of Appeal released its decision on the motion in 2023. As part of its decision, the Court of Appeal provided an overview of the law and procedure of reconsidering a matter:[2]

• Jurisdiction: A court has jurisdiction to reconsider its decision up until a formal order has been taken out.
• Test to be met: The party seeking to re-open a matter after a decision has been rendered faces a “high hurdle”: the court will re-open a matter only in the rare circumstances where it is in the interests of justice to withdraw the reasons of the court and re-hear the case on the merits.
• Procedure:
  • A motion to re-open an appeal is heard by the same panel that heard the appeal; it is not a single judge motion.
  • The motion is generally heard in writing. If an oral hearing is requested, it is for the panel to determine whether that is necessary.

In this case, the Court of Appeal held that the respondent had not raised the kind of “rare circumstances” where the interests of justice would require the court to withdraw its reasons and re-hear the issue of whether the suicide note was a will or codicil to a will. The respondent had identified and argued this issue at the appeal, both in his written materials and in oral argument. The Court of Appeal expressly addressed the matter in its prior reasons, finding that the suicide note was a will and not a codicil. As a result, the Court of Appeal declined to reconsider its decision or re-hear the appeal.

While parties are often frustrated by the pace of litigation, some things should not be rushed: it is important to put your best foot forward in court as you rarely get a second chance.

[1] In such cases, the court is functus officio, or the court has “performed his office.”

[2]  At paragraphs 14-15 and 18-20.